CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF     Application No. 23145/93                Application No. 25091/94 introduced by Tahir ELÇi and others     by Arzu and imam SAHiN against Turkey                          against Turkey           The European Commission of Human Rights sitting in private on 2 December 1996, the following members being present:              M.     S. TRECHSEL, President            Mme    G.H. THUNE            Mme    J. LIDDY            MM.    G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  H. DANELIUS                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 December 1993 by Tahir Elçi (originally in the name of Ömer Elçi) and others against Turkey, registered on 21 December 1993 under file No. 23145/93, and the application introduced on 28 April 1994 by Arzu and Imam Sahin against Turkey and registered on 8 September 1994 under file No. 25091/94;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on 16       June and 22 July 1994 (23145/93) and 18 November 1994 (25091/94)       and the observations in reply submitted by the applicants on 10       August and 26 September 1994 (23145/93) and 18 January       1995 (25091/94);   -      the parties' oral submissions at the hearing on 2 December 1996;         Having deliberated;         Decides as follows:   THE FACTS         The present applications have been brought on behalf of sixteen lawyers, arrested and detained under emergency law in Diyarbakir on various dates in November and December 1993 in South East Turkey. As to Tahir Elçi, the application was originally introduced by his brother Ömer Elçi in his own name. However, it was indicated in the application that it was brought on behalf of Tahir Elçi and his representatives have subsequently declared that the latter should be regarded as the applicant.         The applicants, whose names appear on the list annexed to this decision, are represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England.         The facts of the present case, which are in dispute between the parties, may be summarised as follows.   I.     The applicants state that the following occurred.         - Case of Tahir Elçi         On 23 November 1993 at 9:20 hours, two plain-clothes policemen came to the applicant Tahir Elçi's office in Diyarbakir. After being searched the applicant was taken by the policemen to the police station.         At 10.00 hours on the same day, six policemen, including the two who had visited the office earlier in the morning, returned to the office together with the applicant. The policemen seized the applicant's files and a collection of newspapers (Özgür Gündem, Özgür Halk and Rawsan, pro-Kurdish newspapers) belonging to the applicant. The applicant signed a proces-verbal concerning his provisional detention.         At 11.00 hours on the same day, the policemen, accompanied by the applicant, went to the applicant's home. They searched his home but seized nothing. The policemen then took the applicant back to the police station.         On 25 November 1993, the applicant's brothers were informed by the prosecuting authorities and by a captain of the gendarmerie that the applicant had been detained on 24 November 1993 at the gendarmerie of Cizre and had then been transferred to the police station in Diyarbakir.         Subsequently, the applicant was held in detention incommunicado. He was released on bail on 10 December 1993.         As to the events during the detention period, the following information has been provided.         During his detention, the applicant was tortured   because he had filed applications with the Commission. During his interrogation, correspondence and documentation relating to these applications were in the possession of his interrogators and he was tortured because of his work in bringing the complaints of his clients before the Commission. His interrogators assaulted and abused him particularly over a case which concerned the destruction of the village of Ormaniçi.         He was stripped naked and slapped around and his testicles were squeezed. He was threatened that he would be killed if he looked further into cases of disappearances and evacuated villages. He also suffered other ill-treatment directed at making him sign a statement which he refused to do.         Since his release on bail on 10 December 1993 and despite his requests to the police through lawyers acting on his behalf, he has not had his case-files, including his correspondence with the Commission, returned to him. His legal practice has been disrupted. He has moved from Cizre to Diyarbakir.         -   Case of Arzu and imam Sahin         On 7 December 1993, imam Sahin was taken into custody by policemen from the Anti-Terror Department in istanbul, when he was to attend a hearing before the State Security Court. He was taken to the Anti-Terror Department, and after being held there for a certain period, he was taken to his house where a search was carried out, but no offensive object was found. His wife Arzu Sahin, who was at home, was also taken into custody, and they were both blindfolded and put into a cell at the Security Directorate. On 11 December 1993 they were taken to Diyarbakir by plane and, upon their arrival there, to the Diyarbakir Intelligence and Interrogation Centre.         At the Interrogation Centre, imam Sahin was forced to strip completely naked. He was blindfolded and subjected to ill-treatment such as "falaka", cold water torture, squeezing of genitals, suspension, electric shocks, foul language, and threats against his wife were also made to him during the 14 days he was held for interrogation. During the period he was held in custody, he was only given a quarter of a loaf (about 200 g) of bread a day. He did not see his wife during this time, nor did he know anything about her fate.         On the day he was to be brought before the court, he was taken again for interrogation in the middle of the night. They took hold of his hand and made him scribble blindfolded on some papers. He does not know what these papers were.         Arzu Sahin was also detained at the Intelligence Interrogation Centre and interrogated under duress. She was detained in conditions similar to those of the other applicants with meagre rationing of bread once a day and minimal access to toilet facilities.         On 21 December 1993, imam and Arzu Sahin were brought before the examining judge and remanded in custody by the examining judge on the claim that a person by the name of Abdülhakim Güven, who wished to benefit from the Remorse Law, had incriminated them. However, they do not know the person in question and have had no relations with him.         In the indictment issued on 22 December 1993 Arzu Sahin has been charged, inter alia, with "drawing up documents belittling the Turkish State and faxing them to Human Rights Organisations in European countries".         imam and Arzu Sahin were released on bail on 17 February 1994.         - Case of Nevzat Kaya         On 18 November 1993, three persons from the Diyarbakir Security Directorate, Anti-Terror Department, searched the office of the applicant, drew up a report and signed it together with the applicant.         In the Diyarbakir Security Directorate, the officers told the applicant to hand over all possessions and recorded these one by one. Later they took him to the hospital for an examination, after which they handed him to JITEM (Gendarmerie Intelligence and Anti-Terror Department).         The JITEM members blindfolded the applicant after putting him into a vehicle. The journey lasted about 25-30 minutes. The gendarmes were asking the applicant what connections he had with the PKK and were slapping him around. They were saying that they would kill him if he did not speak. The applicant said that he had no organisational connections with the PKK but that there were some PKK defendants among his clients.         Later the gendarmes took the applicant to an unknown place. After an identity check, they took him to a room and told him to squat down on the floor. On the evening of the following day, the gendarmes took the applicant for interrogation. They claimed that he was the PKK's lawyer and told him to explain his position. The applicant told them that he had no relations with the PKK and that he acted with the authority invested in him by his job as a lawyer. The gendarmes started to beat him up, particularly on the head, stomach and feet. They then brought in someone who claimed to be Abdülhakim Güven. This person said that the applicant organised the lawyers. He then swore at the applicant and, together with the gendarmes, beat him up. The gendarmes then took the applicant to a place where they sprayed him with cold water.   From the voices in that room, the applicant realised that his colleagues Sinasi Tur, Hüsniye Ölmez, Sabahattin Acar, Meral Danis Bestas and Mesut Bestas were there. They were all blindfolded and were on the floor. They were given a loaf of bread a day to eat. The applicant was permitted to go to the toilet twice a day. On the following day he was taken back to the interrogation place again and the ill-treatment was repeated. The gendarmes made threats involving his sexual organs.         On the seventh or eighth day of the custody, the applicant and his friends decided to go on a hunger strike which lasted two and a half days. On the night of 8 December 1993, the gendarmes called the detainees one by one and told them to sign a number of documents; they then started the ill-treatment sessions again. The applicant did not sign in the first session. In the second session, when Fuat Hayri Demir said that everyone else had signed the statements, he was forced to sign some documents drawn up by the gendarmes without reading them. On 10 December 1993, the detainees were brought before the Court. The forensic doctor, frightened by the gendarmes, did not mention torture in his report.         - Case of Sinasi Tur         On 15 November 1993, the applicant was taken into custody. He was interrogated during 26 days at the Diyarbakir Provincial Gendarmerie Regiment Headquarters.         A former PKK member who had confessed to his activities was brought before him in custody and made accusations against the lawyers who were then constrained to admit to these. The allegations focused on the exchange of notes between different prisons concerning the PKK and organic relations with this organisation. The applicant was forced to sign prepared statements.         On 10 December 1993, the applicant was released by the judge who did not take into account the statements made in the gendarmes' station. Only three of the lawyers were remanded in custody.         The prosecution appealed and requested the remand of the six lawyers who had supposedly been caught with incriminating notes on them. The Court acquiesced with this request and decided to remand the lawyers after their release. Later, the appeal against the remand of two of the lawyers was accepted. The trial is ongoing at the State Security Court No. 3.         - Case of Sabahattin Acar         On 15 January 1993, at about 19:15 hours, the applicant answered the door bell and was told to open the door to the police. In order to check that the persons calling on him were really from the police, he called the State Security Court Chief Prosecutor. Three hours later, a commissioner he knew came from the Diyarbakir Security Directorate and the applicant opened the door. About 15 policemen, gendarmes and Special Team members entered his flat and conducted a search.         The applicant was taken from his house by gendarmes together with some of his books, cassettes and articles. He was blindfolded on the way, and taken to the Gendarmes Regiment Headquarters Interrogation Centre.         He was locked in a dark cell at the centre. He was only given a blanket to use as a bed in the damp cell where there was no heating device and the outside temperature was below zero. He was taken to the toilet twice a day, once in the morning at 06:00 hours and once in the evening at 18.00 hours.         On the third day, the applicant was taken to another place for interrogation. He was constrained to admit to charges laid against him. The interrogators asked him in particular whether he had any relations with the PKK, whether he had attended hearings before the State Security Court concerning PKK militants and whether he had prepared reports on human rights. Then Abdülhakim Güven, the former PKK member who had benefited from the Remorse Law, was brought before him. The applicant was told to admit to his accusations and, when he refused, was taken outside, stripped naked, threatened to be taken into the hills and killed. The applicant finally signed the report, blindfolded. On the twenty-sixth day, he was brought before the State Security Court Prosecutor. He was able to learn the contents of what he had signed only then. He was being accused of a great many acts of which there had been no mention during his interrogation. A remand order was issued against him and he was sent to the Diyarbakir No. 1 E-Type Prison.         - Case of Niyazi Cem         He was taken into custody by five Anti-Terror Department policemen in the corridors of the istanbul State Security Court on 23 November 1993 and taken to the Gayrettepe 1 Division building of the police. His bag was searched thoroughly and, in the evening, he was thrown into a cell where he was held for four days. On 26 November 1993, he was taken to the Bursa Osmangazi Detention Centre. On Saturday evening (27 November) he was brought back to istanbul. On 28 November 1993 the applicant and a suspect from Bursa were taken to Diyarbakir by plane and to JITEM.         He was blindfolded and for the first two days (i.e. 28 to 30 November) he was not interrogated. He was given a loaf of bread a day and taken to the toilet twice. Until 30 November he did not know what he was accused of. He was first interrogated on 1 December 1993 at around 23.30 hours. They put three more bands over his eyes. They accused him of having sent someone to join the PKK, of acting as a courier between prisons, of organising relations with istanbul and Europe, and of having contacts with the PKK's political branch as well as with the Özgür Gündem and Özgür Halk newspapers.         The applicant replied that he had no relations with the PKK. They swore at him, pulled his hair and hit him. Then Abdülhakim Güven was brought in and he accused the applicant of acting as a liaison person between prisons. The applicant claimed that Güven accused him so that he could benefit from the Remorse Law and gave explanations concerning the accusations made against him.         Until 7 December 1993, he was beaten, threatened, abused, insulted, forced to listen to loud music and to sleep on a cold concrete floor, all while being kept blindfolded.         In the evening of 8 December 1993, the interrogators tried to make him sign a statement they had prepared without allowing him to read it. In the end, the applicant and the lawyers Hüsniye Ölmez, Meral Danis Bestas and Tahir Elçi did not sign and were beaten up again. On 9 December 1993 he was again told to sign and when he refused, he and Tahir Elçi were taken to the toilet, stripped naked and tortured with pressurised water.   In the end, when he could not bear it any more, the applicant started beating his head against the wall. The police then took him out, made him put his clothes on and put him with his friends. The next day all the applicants were brought before the court.         - Case of Selim Kurbanoglu         The applicant was taken into custody by gendarmes from his home and taken blindfolded to the Interrogation Centre and put in a very crowded cell where he was made to lie on the floor with only a blanket. Many people came in and being blindfolded they tried to recognise each other by their voices. That is how he found out that other lawyers he knew were there with him. During the 21 days he was in custody, he was beaten and kept blindfolded.         On 20 December 1993, he was brought before the Diyarbakir State Security Court and he and 10 other lawyers were released. Four days later arrest warrants were issued against them upon the prosecutor's appeal against the Court's decision.         - Case of Meral Danis Bestas         The applicant and her husband were taken into custody in the evening of 16 November 1993 while leaving the Diyarbakir State Security Court. They were transported by car to what seemed like a large hall. The applicant was put in a cell alone and was given a blanket. The cell was extremely cold. Half an hour later she was taken to the interrogation room and accused of being a courier. She replied that she visited prisons because of her job.   She was slapped twice and taken back to her cell. In the evening of the following day, she was interrogated again. This time she was told that she was the Human Rights Association's secretary and worked for the PKK. For a whole week she was questioned about her activities in the Association and particularly about applications against Turkey made to the European institutions.   Two days before being brought before the Court, she was taken from her cell in the middle of the night. She was given a pen and told to sign some papers. She refused to sign without reading them, whereupon   she was taken somewhere else and threatened with torture. She was stripped naked and subjected to pressurised water three times for at least an hour each time until the day she was taken to the Court.         During the 24 days she was in custody, she was allowed to go to the toilet twice a day and was given a piece of bread once a day.         - Case of Mesut Bestas         On 16 November 1993, the applicant was arrested while leaving the State Security Court with his wife at about 18.00 hours. They were blindfolded and put in a vehicle. They were taken to the Interrogation Centre and he was put in a cell and given a blanket. He was allowed a slice of bread a day.         He was accused of being a courier for the PKK. The applicant insisted that he was a lawyer who took on all kinds of cases. He was frequently taken to the interrogation room, beaten up and subjected to inhuman treatment. During the whole custody period   (25 days), he was forced to listen to very loud music and nationalistic songs.         The applicant was brought before the State Security Court Prosecutor on 10 December 1993. The questions put to him were based on the declarations of a former member of the PKK who had benefited from the Remorse Law. He was first released and then arrested on the appeal of the Prosecutor and held in detention on remand.         - Case of Vedat Erten         On 23 November 1993, the applicant was taken into custody by the gendarmes and was questioned about his reasons for taking political cases. The applicant said that as a lawyer it was his duty and also that not all his cases were political. He was made to strip naked, abused, insulted, kicked and beaten up. He was forced to sign some papers which, being blindfolded, he could not read. He signed these papers on 8 December 1993. He was able to learn on the day he was brought before the Court that accusations had been made against him by Abdülhakim Güven. The applicant was released on 10 December 1993 by the judge but a warrant was issued for his arrest on 14 December 1993 on the appeal of the Prosecutor.         - Case of Baki Demirhan         The applicant was taken into custody on 9 November 1993 after a hearing at the Diyarbakir State Security Court buildings. During the police custody, he was blindfolded. He was also threatened with execution.         - Case of Arif Altinkalem         On 16 November 1993, the applicant was taken into custody by the gendarmes after leaving the State Security Court at 16.30 hours together with Meral Bestas, Mesut Bestas and Baki Demirhan. During the police custody, he was blindfolded. He was also threatened with execution.         - Case of Gazanfer Abbasioglu         On 30 November 1993, the applicant was arrested in the office of the lawyer S.T. After a search in his office, the policemen took him to the Security Directorate. During the   police custody, he was held in the same conditions as the other   applicants   and forced to sign a false statement.         - Case of Fuat Hayri Demir         On 3 December 1993, the applicant was arrested by police from the Diyarbakir Security Directorate as he was leaving the State Security Court building at about 12.30 hours. During the   police custody, he was held in the same conditions as the other applicants and forced to sign a false statement.         - Case of Hüsniye Ölmez         On 16 November 1993, the applicant was arrested by police from the Diyarbakir Security Directorate. She was made to strip naked and beaten up. She was forced to sign some papers which, being blindfolded, she could not read.   II.    The respondent Government state as follows.         Following the statements given by Abdülhakim Güven who was on trial for being an active member of the terror organisation PKK, an investigation had been instigated against the applicants.         The periods of the police custody and the periods of detention upon the decision of the judge in relation with the applicants in application No 23145/93 are as follows:       Periods of police custody Periods of detention   pon decision of a judge Sinasi Tur 15.11.-10.12.1993   Sabahattin Acar 15.11.-10.12.1993 10.12.1993-17.02.1994 Meral D nis Bestas 16.11.-10.12.1993   Mesut Bestas 16.11.-10.12.1993 15.12.1993-17.02.1994 Baki Demirhan   6.11.-10.12.1993   Arif Altinkalem 16.11k94 Niyazi Cem 23.11.-10.12.1993   Gazanfer bbasioglu 30.11.-10.12.1993   Fuat Hayri Demir 03.12.-10.12.1993 B      As a consequence of the pre iminary investigation, the chiefCpublic prosecutor of the State Security Court of Diyarbakir filed aEcrimina   action with the indictment dated 22 December 1993 against 23Edefendants, including the lawyers listed as ap licants in the present case and a few prison guardians.ants wereFcharged with the offence of being members of and acting for the terrorAorganisation PKK. S me of them were suspected of having committedGserious crimes such as helping PKK terrorists to get weapons, smu glingCin and out of prison proscribed items or instruments for committingDcrimes within prison such as yanide or a knife for the PKK inmates,@receiving and implementing instructions from the PKK leaders ip. them were released. The publicFprosecutor of the Diyarbakir State Security Court appealed against the judge's decision. The State Security Court decided to rearrest six applicants.         On 17 February 1994 all applicants had their first hearing before the State Security Court. They were all released on the same day.         The criminal action before the State Security Court against the 23 defendants is still going on. The Court is expected to conclude the case in early 1997.   III.   The records submitted in the case show that, at the hearing on 17 February 1994 before the Diyarbakir State Security Court, most of the applicants, i.e. Tahir Elçi, Arzu Sahin, imam Sahin, Kaya, Tur, Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Demirhan, Abbasioglu, Demir and Ölmez, complained of torture, ill-treatment or undue pressure having been exercised on them during their police custody. Some of the applicants, including Erten and Altinkalem, had already made similar complaints before the examining judge on 10 December 1993. Altinkalem also referred to such treatment at the hearing before the State Security Court on 28 April 1994.         After the hearings on 17 February and 28 April 1994, the State Security Court took certain procedural decisions in which, however, no mention was made of the complaints relating to torture, ill-treatment or undue pressure.   C.     Relevant domestic law and practice         The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants).         Complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate criminal offences reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.         If the alleged author of a criminal offence is a State official or civil servant, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind.         Pursuant to Article 1 of Law 466, a person who has been   held in police custody unlawfully or without justification may apply to the local assize court for compensation within three months of the decision not to prosecute.         Furthermore, any illegal act by civil servants, be it a criminal offence or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.         Proceedings against the Administration may be brought before the administrative courts, whose proceedings are in writing.         Pursuant to Article 128 to the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of peace within twenty-four hours, or, in the case of collective offences, within four days. In the proceedings before the State Security Courts, these periods are extended, pursuant to Article 30 of Law 3842 of 1 December 1992, to forty-eight hours in the case of individual offences, and to fifteen days in the case of collective offences. Pursuant to the same Article, in cases involving a state of emergency, the custody periods in the proceedings before the State Security Courts are doubled: four days in the case of individual offences, thirty days in the case of collective offences.   COMPLAINTS         The applicants complain of violations of Articles 3, 5 and 8 of the Convention and Article 1 of Protocol No 1. The applicant Tahir Elçi has also made complaints which in substance relate to Article 3 in connection with Article 25 of the Convention.         As regards Article 3 of the Convention, the applicants Tahir Elçi, Tur, Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Erten and Ölmez   complain, in their observations which were received on 28 april 1994, of having been subjected to inhuman treatment or torture during their detention. The other applicants complain of ill- treatment in police custody in their final submissions received on 4 November 1996.         As regards Article 5 of the Convention, the applicants state that their detention was arbitrary and lacked any justification. They believe that the reason was the fact that they had defended before the State Security Court persons who were accused of membership of the PKK, and submit that such a ground is incompatible with Article 5, since it is a fundamental principle that lawyers should be free to defend anyone accused of an offence.         In application N° 25091/94 the applicants also complain in substance of the length of their detention in police custody. In application N° 23145/93, the applicants, in their submissions of 26 September 1994, also complain of the length of their detention in police custody.         As regards Article 8 of the Convention, the five applicants Tahir Elçi, Tur, Acar, Kurbanoglu and Cem complain of the search of their houses and offices and the confiscation of their private belongings, work files and private correspondence by the police and the public prosecutor.         As regards Article 1 of Protocol No 1, these applicants complain of interference with their property.         As regards Article 25 of the Convention, the applicant Tahir Elçi alleges that the torture to which he was subjected was inflicted because he had assisted clients in bringing cases before the Commission. The applicants further point out that four of them - Acar, Arzu Sahin, imam Sahin and Demirhan - have been charged with criminal conduct on the basis of making applications to the Commission and that the detention and treatment of all the applicants can have a "chilling effect" on their willingness to bring cases before the Commission.   PROCEEDINGS BEFORE THE COMMISSION         Application No. 23145/93 was introduced on 3 December 1993 and registered on 21 December 1993. Further observations were submitted on 28 April 1994. Application No. 25091/94 was introduced on 28 April 1994 and registered on 8 September 1994.         After a preliminary examination of the cases by the Rapporteur, the Commission considered the admissibility of the applications on 14 April 1994 (23145/93) and on 9 September 1994 (25091/94). It decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of the applications to the respondent Government and to invite the parties to submit written observations on admissibility and merits.         The applications have been joined on 9 September 1994.         The Government's observations were submitted on 16 June and 22 July 1994 (23145/93) and 18 November 1994 (25091/94) to which the applicants replied on 10 August and 26 September 1994 (23145/93) and 18 January 1995 (25091/94).         On   13 May 1996, the Commission decided to invite the parties to make oral submissions on the admissibility of the applications at a hearing.   The hearing was fixed for 2 December 1994.   Prior to the hearing the applicants submitted additional material on 4 November 1996.         At the hearing on 2 December 1996, the Government were represented by MM. A. Gündüz, S. Alpaslan, acting agents, MM. A. Akay, M. Özmen, advisers, MM. F. Polat and A. Kaya, experts. The applicants were represented by Mr. Timothy Otty, Ms. F. Hampson, Mr M. Müller and Ms. A. Reidy, as counsel.   THE LAW         The applicants complain of their arrest and the circumstances of their police custody. They allege violations of Articles 3, 5, 8   and 25 (Art. 3, 5, 8, 25) of the Convention and Article 1 of Protocol No 1 (P1-1).         As regards the applicants         The Government submit, in general, that the applications were presented to the Commission by an organisation which has distorted the facts. Most of the applications originating from the South East of Turkey and coming before the Commission through that organisation, have taken the form of hybrid applications which are not contemplated by the Convention. The Government state that this amounts to a de facto change of the Convention system.         The Commission considers these contentions of the Government as an objection to admissibility raised on the basis of the abuse of the right of petition. However, the Commission notes that the applications have been lodged in due form on behalf of the applicants and that there is no evidence that the applicants would wish to discontinue their applications. Nor does the Commission find any other element which would lead to the conclusion that there has been in the present case an abuse of the right of petition.         The Government also contend, in particular, that Mr. Ömer Elçi, the brother of the lawyer Tahir Elçi, cannot be presented as an applicant in this case, since he was neither the victim nor the injured party, and that there was nothing which had prevented Tahir Elçi from introducing himself an application, had he wished to do so.         The applicants submit that the detained lawyers, including Tahir Elçi, should be regarded as the applicants in this case.         The Commission recalls that when application N° 23145/93 was introduced on 3 December 1993, there was no direct contact with Tahir Elçi who was in police custody. Although Ömer Elçi brought the application in his own name, it is clear that he acted on behalf of his brother Tahir Elçi, which is also expressly indicated in the application form. Consequently, the Commission, in its examination of the application, will consider Tahir Elçi and not Ömer Elçi as one of the applicants in this case.         As to Article 3 (Art. 3)         The applicants complain of having been submitted to torture, ill- treatment or undue pressure during their periods of police custody.           Exhaustion of domestic remedies         The Government first submit that the applicants, before lodging an application with the Commission, failed to comply with the requirement under Article 26 (Art. 26) of the Convention in that they did not exhaust domestic remedies with regard to their complaints under Article 3 (Art. 3) of the Convention. They contend that the acts alleged by the applicants would constitute punishable criminal offences under Turkish criminal law. The applicants, all legal practitioners, could therefore be expected to lodge insistent criminal complaints with the public prosecutor or more appropriately with the office of the Governor of the State of Emergency Region. The Government recall that a decision of the Provincial Administrative Council whether or not to bring the case before the criminal courts is subject to supervision by the Council of State. According to the Government, the applicants could also have requested an examination by the prison doctor, who is connected to the Ministry of Justice and independent from the security forces.         The applicants submit that any purported remedy would have been illusory, inadequate and ineffective. They do not deny that the procedures identified by the Government are formally part of the Turkish legal structure, but they contend that the Government have not shown how such procedures could conceivably be effective in the specific circumstances of the present case.         The applicants consider that none of the remedies suggested by the Government could be regarded as effective because the scale of torture committed with impunity by agents of the State in detention centres is such that this must be considered high-level Government policy - an administrative practice - in regard to which all remedies are theoretical and irrelevant. This has been confirmed by several intergovernmental organs (such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) and non-governmental bodies.         The applicants add that they have taken all steps which could reasonably be required of them. They point out that they complained of torture or ill-treatment during their custody before the examining judge on 10 December 1993 and when appearing before the State Security Court on 17 February 1994 or 28 April 1994.         The Commission does not deem it necessary to determine whether there exists an administrative practice on the part of the Turkish authorities of tolerating abuses of human rights of the kind alleged by the applicants, because it considers that in any case the applicants have done all that could be expected of them in the circumstances. The Commission has formed this view for the following reasons:         The Commission notes that the applicants raised in the proceedings before the examining judge or the State Security Court their complaints concerning their alleged ill-treatment during their time in police custody. These allegations of torture or ill-treatment were duly entered into official records, and it should have been a matter of considerable concern to the judicial authorities that a large number of lawyers - members of the Bar - complained of having been subjected, almost at the same time, to such treatment during their detention. Nevertheless, and despite the duty of the authorities under Turkish law to act ex officio when confronted with suspicions of torture, the examining judge, the State Security Court and the public prosecutor who was present at the hearings before that court all chose to ignore the complaints and not to examine the allegations or transmit them to the local public prosecutors' offices or to local administrative bodies.         The question arises as to whether, in these circumstances, the applicants were required to avail themselves of further remedies, as contended by the Government, by addressing a complaint to the competent public prosecutor or the local administrative bodies. The Commission considers that the failure of the authorities to take any action on the basis of the complaints made by the applicants before the judicial organs makes it highly unlikely that they would have been successful if they had repeated the same complaints in an application to the public prosecutor or an administrative organ. The Commission, who finds that the applicants used an appropriate remedy by complaining of torture or ill-treatment during the judicial proceedings, considers that, in view of the failure of the judicial authorities to take any action, it can be assumed that any other legal remedies would also have been without any prospect of success. In the circumstances, the applicants were therefore not obliged to pursue any of these remedies (cf. Nos. 16311/90, 16312/90 and 16313/90, N.H., G.H. and R.A. v. Turkey, Dec. 11.10.91, unpublished; No. 21987/93 Aksoy v. Turkey, Dec. 19.10.94, D.R. 79 p. 60; No. 17126/90, S.Ö. v. Turkey, Dec. 30.08.94, unpublished and mutatis mutandis No. 19092/91, Yagiz v. Turkey, Dec. 11.10.93, D.R. 75 p. 207).         The six months' rule         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with a matter within a period of six months from the date on which the final decision was taken in domestic law.         The Commission considers that in a case where an applicant avails himself of a domestic remedy and it becomes clear, at a later stage, that this remedy was not effective, the six months period should in principle be calculated from the time when the applicant became aware of the ineffectiveness of the remedy.         The Commission finds it established that most of the applicants, i.e. Tahir Elçi, Arzu Sahin, imam Sahin, Kaya, Tur, Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Demirhan, Abbasioglu, Demir and Ölmez, complained of torture, ill-treatment or undue pressure before the State Security Court on 17 February 1994. Other applicants, including Erten and Altinkalem, made similar complaints before the examining judge on 10 December 1993. Altinkalem also referred to ill- treatment before the State Security Court on 28 April 1994. After the hearings on 17 February and 28 April 1994, the Court took certain procedural decisions in which no mention was made of the allegations of torture, ill-treatment or undue pressure.         The Commission considers that the failure of the judicial authorities to act must have become gradually apparent in the period up to 28 April 1994 and that the six months period provided for in Article 26 (Art. 26) of the Convention should therefore be considered to have started running not later than 28 April 1994.         The Commission notes that the applicants Tahir Elçi, Tur, Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Erten and Ölmez lodged their complaints concerning Article 3 (Art. 3) of the Convention with the Commission by submitting supplementary observations on 28 April 1994, that is well within the six months time-limit. These applicants have therefore complied with the conditions of Article 26 (Art. 26) of the Convention.         However, the other applicants, Arzu Sahin, imam Sahin, Kaya, Demirhan, Altinkalem, Abbasioglu and Demir, cannot be considered to have introduced their complaints in this regard before the Commission until after the expiry of the six months time-limit. These complaints were in fact only referred to in the final submissions which were received on 4 November 1996.         The Commission finds, therefore, that the applicants Arzu Sahin, imam Sahin, Kaya, Demirhan, Altinkalem, Abbasioglu and Demir have introduced their complaints under Article 3 (Art. 3) of the Convention out of time and that these complaints are inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.         The substance of the complaints         The Government maintain that there is no evidence to substantiate the applicants' allegations against the gendarmes under Article 3 (Art. 3) of the Convention. They contend that the statements presented on behalf of the applicants are inadmissible as they were not taken by a judicial officer. The Government also submit that the quotations taken from the reports of international and non-governmental bodies are either misleading or of no significance in this case. They add that two medical reports concerning the applicants Ölmez and Meral Danis Bestas effectively rebut any suggestion of ill-treatment of the applicants during their custody.         The applicants maintain that the alleged ill-treatment is not of a kind which would necessarily leave marks to be observed by an examining doctor. They contend that there is medical evidence to support allegations of ill-treatment concerning the applicants Ölmez and Meral Danis Bestas. The applicants submit that given the concerns raised about the independence of examining doctors, their certificates should not be treated as decisive.         The Commission considers, in the light of the parties' submissions, that this part of the case - insofar as it relates to applicants whose complaints are not inadmissible under Article 26 (Art. 26) of the Convention - raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.         As to Article 5 (Art. 5)         The applicants allege that their detention was arbitrary and lacked justification. They also complain of the length of their detention in police custody.         Exhaustion of domestic remedies         The Government submit that the applicants, before lodging an application with the Commission, failed to comply with the requirement under Article 26 (Art. 26) of the Convention in that they did not exhaust domestic remedies with regard to